Jack Goldsmith's Interview With Dean Baquet, Executive Editor of the New York Times, on Publication Decisions About Intelligence Secrets

Editor's note: In response to criticism from CIA Director Mike Pompeo, the New York Times' national security editor over the weekend defended the newspaper's publicationof the identity of a CIA officer charged with running its Iran operations. The Times noted that it was not the first time it had published the officer's name, and for further explanation of its original decision, it referenced a 2015interviewon Lawfare by Jack Goldsmith of Times executive editor Dean Baquet concerning the earlier revelation. Because the issue is back in the news, we are reposting the interview along with Jack's opening comments from April 2015.

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On April 25, two days after President Obama announced that a U.S. drone strike accidentally killed two innocent hostages, Mark Mazzetti and Matt Apuzzo published a story in the New York Times about congressional and White House support for the CIA’s “targeted killing program.” A major point in the story was that some of the CIA officers who built the CIA’s drone program also led the CIA’s detention and interrogation program. In that connection, the Times identified three men by name: Michael D’Andrea, who was “chief of operations during the birth of the agency’s detention and interrogation program and then, as head of the C.I.A. Counterterrorism Center, became an architect of the targeted killing program” until he was “quietly shifted to another job” last month; his replacement “as head of the drone program,” Chris Wood; and the new chief of the Directorate of Operations, Greg Vogel, whom the Times described as “a former agency paramilitary officer.”

All three men were undercover officers, a status sanctioned by Section 23 of the Central Intelligence Agency Act that indicates that the CIA does not want their identity to be public or acknowledged. The CIA accordingly asked the Times not to identify the three men by name. The Times rejected this request. It explained in the story that it decided to identify the officers by name over CIA objections “because [the men] have leadership roles in one of the government’s most significant paramilitary programs and their roles are known to foreign governments and many others.” Director of National Intelligence General Counsel Bob Litt said that the Times “disgraced itself” with this decision, which he claimed put not just the officers at risk, but also “their families, and their contacts when they served in covert capacities overseas.” The Times’ decision almost certainly did not violate any law. The Intelligence Identities Protection Act, which criminalizes disclosure of the identity of covert agents, contains loopholes that likely apply here. But was the decision to publish the names appropriate? Or was it a disgrace?

Yesterday I discussed these and related issues by telephone with Dean Baquet, the Executive Editor of the Times and the person responsible for the newspaper’s decision to publish the names. What follows is a lightly edited transcript of our conversation.

JG: Why did you publish the names of the undercover officers?

DB: Here’s why I thought we had to do it. I think this is largely a military operation. Since September 11, the CIA has started to play a little bit of a different role. And I think the drone program represents that in part. It’s a military operation. That’s the first thing.

JG: Why does that matter? Is that because a military operation is something that traditionally wasn’t covert?

DB: Yes, but that’s not the only reason. Because it’s a military operation, I don’t think we can completely treat the people who run it purely as intelligence operatives. It moves into a different realm in the discussion as far as I’m concerned. It’s not like you’re exposing a wide undercover operation in Afghanistan. You’re writing about something that is generally done by the military, which I think means that the cloak of secrecy that usually we all allow for the CIA is a little more complicated. That’s the first thing. The second thing is: No matter what one thinks of the drone program, it is now one of the most hotly debated issues in national security It’s something the president has said we should talk about more. It’s something that some members of Congress have said we should talk about more. So suddenly the CIA is running a program that I think there is very much a public interest in us revealing very many details about.

JG: But that doesn’t quite answer the question of why you named the names.

DB: Now I’ll work my way to the names. This particular story was about accountability. The whole theme of the story was about accountability. It was not just an explanatory story about the drone program. It came three days after a very tragic event [the accidental killing of the American hostages] that raises fresh questions about the drone program. And I think our obligation in the story was to say: Here’s this program that is even more controversial now. How is it policed? Did Congress do what Congress says it’s going to do, which is to police the program, to provide oversight? Is there oversight? And I think we ran into one powerful fact. Some of the same people who were the architects of the “torture program” were also architects of the drone program. So now you’re writing a story about accountability for a program that has just had its most high-profile mistake, and you’re asking the question, “How accountable is the program?” I think at that point you’ve got to write about the guy who runs it, especially because he’s the guy who helped craft another controversial program. That’s not a knock on him. But I think if you’re going to write about accountability, you have to include the name of the guy. Because otherwise all you’re going to say is that the same guys who were the architects of the torture program, some of then were also the architects of the drone program, and some of the same questions that were raised by the torture program – about the way it was administered and the way it was policed by Congress – have also been raised by the handling of the drone program. And I think once you go down that route, that far, you’ve got to describe the guy. I should add that these cases where we name names, I do not feel like I am on my high horse. I suspect could sit down with another reasonable journalist who would say, “Dean, I wouldn’t have named him.” And I would get that. These things are complicated.

JG: I understand why it might be important to say that the same people ran both programs. That’s a hugely interesting fact. But why name the names? The counterargument is that Congress gave the CIA authority to make officers undercover agents, and the CIA made a decision that there would be harm to these people if their identities were revealed.

DB: These guys may technically be undercover. But even the CIA admitted when they called – and this was a big factor in the decision – that they are widely known, and they were known to the governments where they were stationed. The CIA’s pitch was not that these guys are secret or that people don’t know about them. The CIA’s pitch to me was, “Look, its one thing to be widely known, and to be known to governments and to be on web sites; but when they appear on the front page of the New York Times, that has a larger meaning.” So they were known anyway. The gentleman at the very top [of the CTC] runs a thousand-person agency, and makes huge decisions, personally, that have tremendous repercussions for national security. I’m not making judgments about him, but that’s the reality.

JG: But who is he more accountable to now that we know his name? I can imagine some possibilities. He’s not more accountable to Congress because it knew his name. He’s not more accountable within the Executive branch. He’s not more accountable within the judiciary. I guess he’s more accountable to the American people but I’m not sure how that operationalizes itself. They might be able to find his address and go protest. Is that what you mean by accountability in naming the names?

DB: No, no.

JG: So what do you mean by accountability?

DB: Go back to the Senate torture report. One of the biggest criticisms of the torture report was that there was no accountability. That the people who ran the torture program were not held accountable. I am going to argue that part of the reason the CIA historically not held accountable – when I say held accountable, I guess I do mean the public. And I also think – and this is one of those journalistic calculations – that stories have impact, but if they don’t have names, if they don’t have concrete details, it’s hard for readers to wrap their minds around it and get their full meaning. We get criticized a lot, rightly, for writing stories based largely on anonymous sources. Sometimes we overdo it – I’ve said that. So I think when you have a story based on anonymous sources about anonymous people, in a way you’re not really contributing to the debate, you’re not contributing to the discussion. There’s a concreteness of details and names and named sources and reports that’s always hard to come by when you write about the Agency. And I think that when you have stories that actually names individuals…again, not some undercover operative in Kabul, I am talking about a guy who runs a thousand person agency. If I wrote a story about Bagram [Airfield detention facility], in Afghanistan, it would be really weird not to mention the guy who runs Bagram. I think you’d be leaving out a \ compelling detail that helps you to understand it. I know that may sound like one of those journalistic constructs.

JG: Let me press you one more time. What you really are saying is that it’s a better story and its more vivid and the American people can better understand it if we name this guy’s name.

DB: That’s part of it.

JG: I accept that, but I still don’t understand what you mean by accountability. This guy is not confirmed by the Senate. He’s a bureaucrat, and I’m not saying that makes him immune but he’s…

DB: He’s a very powerful bureaucrat. He makes decisions day to day for what is arguably one of the most significant and historic military programs that the United States has been involved in. Whether you agree with it or not, the drone program is an historic program. Yes he’s a bureaucrat, but he’s a high-ranking bureaucrat. And let’s not forget, the program that he ran made a significant error. I’m not blaming him for it, that’s not my job. I’m talking about the spotlight and the accountability for the program. Something really remarkable happened last week. The President of the United States got up and apologized for a mishap in the drone program, occasioning a story that looked more deeply at the drone program. And I think that warrants identifying the guy who ran it.

JG: Let me ask you a different question. What do you think about the claim by Bob Litt, the General Counsel of the DNI, that you’ve put these guys’ lives and their families’ lives in jeopardy, and also the people they worked with undercover abroad? How do you assess that? How do you weigh that?

DB: I guess I would say a couple of things. I wish the CIA did not say that about everybody and everything. They hurt their case.

JG: They say it a lot?

DB: They say it all the time. I wish they were a little more measured in saying that. Sometime it’s a little difficult to deal with the Agency. When somebody says that and has a track record of rarely saying that, it really gives me pause. But they [the CIA] say it whenever we want to mention a [covert] CIA operative or CIA official. I guess I would say to Bob, with all due respect, that we can mention the name of a guy who runs a big military program like GTMO, we can mention the name of a high-ranking military official who has the same type of authority as this [CIA] guy, we can mention the guy who runs the military side of the drone program, we can mention the counsel to the president on national security issues, or we can mention someone who runs a very significant military program, but now we cannot mention the person who runs the exact same program in the CIA?

JG: But a lot of those military guys have security details and live on bases. Do you even know if this guy has a security detail?

DB: I don’t know that. But I will add one other thing that I said at the beginning but that I think is important. The CIA’s role changed. It has changed with the drone program. It has become a semi-military agency, a semi-military operation. And I don’t think you can do that and then insist on the same rules in dealing with the press, the same “protections” as you did when you were actually running truly secret clandestine programs. One other thing. In think in this case, secrecy is part of the story. Part of the story of the CIA’s operation of the drone program is that, because it’s run by the CIA, it lives in the shadows. I think secrecy is part of the issue here too. But I don’t know if the guy had a detail, I really don’t.

JG: I want to make sure I understand you. You’re not saying that you don’t care about the risks to lives. Because I know that there are agents you have the names of abroad that you don’t publish ...

DB: We totally care. I’m not saying that.

JG: I know you care. So are you discounting what the CIA said about the risks here? Did you do an assessment, a cost-benefit analysis of the risks that you perceive?

DB: No. But I will say that the CIA did not make a very compelling case other than the fact that these guys work for the CIA. They said that they work for the CIA and their families would be at risk if we expose their connection to the drone program. They did not say that one of these guys is an intelligence operative who lived for twenty years in Kabul and did XYZ. Also, it’s a little hard to do a full-blown risk analysis with the CIA and get it right. We don’t know that much about them. Which is part of the problem with the CIA running the drone program.

JG: That means that, if you were told that by CIA and something does happen, in some sense that’s part of the responsibility that you have to accept when you make that decision?

DB: Yes, if something happened to one of these guys afterwards, and it was a result of the story, I would feel … that’s why we take these calls and requests very seriously. But it has to be balanced. The only way we can make these decisions is that we have to balance that concern – and it’s a real concern, and by the way that’s why we usually don’t do this – we have to balance that concern against this other huge issue in my mind, that this is one of the most significant national security programs in recent memory. Somehow in that balance – I would be lying if I said to you that there was a mathematical formula – we have to sort of find our way. And that’s what I tried to do in this case.

JG: When you look at institutions like the CIA, or any institution that you cover, especially in Washington, they all give you self-serving and self-interested justifications for what they do. And a lot of people think that that’s what you do [act self-servingly] when you do these balancing analyses, that you have a thumb on the scale of publication because its serves your interests. What would you say to that criticism?

DB: I do have a thumb on the scale of publication. I wouldn’t even characterize that as a criticism.

JG: Let me make the point sharper. The criticism is that yes, you have a thumb on the scale of publication, but when you’re weighing the risk to national security, you are really thinking about serving your interests and concerns, and you implicitly discount the risks to national security, in the same way that the government discounts the value of transparency.

DB: My argument to that would be that if you talk to people in government, from CIA and NSA, they will tell you that we bend over so far backwards to push them to tell us in as great detail as possible what the national security issues are when we are about to publish a secret. And there are many secrets we do not publish because they are able to make a compelling

JG: And here they did not make it?

DB: I don’t think they have a compelling case. They had guys whose names are widely known, including by the governments in places where they worked, and they have guys who run significant programs; and they are only undercover in the most tangential way, they are not truly living in the shadows. I don’t think they had a powerful case. I think they tried. I don’t think it was from lack of effort or because they were arrogant, but they had a weak case. It was a case based on the assumption that any CIA official other than the Director himself, and I guess the General Counsel, those names cannot be published. That’s largely the assumption.

JG: I think they would have said that anyone who is undercover or covert cannot be named.

DB: Yes, yes. That is the assumption. I am not saying that we were changing the rules per se. I am not going to write a memo to the staff saying that our rules have changed. But I think that they have to accept that the way we deal with that assumption has got to be different given the role that the CIA has taken on. If there were another case of a guy who ran a thousand people but they were all undercover throughout the Middle East, I cannot think of a powerful reason to run that story.

JG: You said in the Huffington Post, in the context of this story, that the press “was sometimes too quick to withhold information at the request of the government” in recent years. Tell me what you meant by that, and how the idea that the press was too quick to withhold information influenced your decision here?

DB: I’ll give you an example. When Al-Awlaki was killed by a drone strike, we were on deadline, and I was the Managing Editor. The Acting Director of the CIA called up because we were going to say in the middle of the story that the drone that killed Al-Awlaki took off from a base in Saudi Arabia. (I can give you twenty examples, but this is just one.) He called up and said, “If you say that the drone took off from a base in Saudi Arabia, we are going to lose that base. The Saudis are going to go nuts, they don’t want people to know that we are flying drones from their base.” And so I took it out. And I think we made it something like, “The drones took off from a base in the Arabian Peninsula,” something vague. Sure enough, the next day, everybody other than us said it was Saudi Arabia. When I thought hard about it, [I concluded] that was not a good request. And I later told the CIA it was not a good request. And they should have admitted that was not a good request. Everyone knew they had a base. It was for geopolitical reasons, not really national security reasons. I think that’s one where they shouldn’t have asked and I shouldn’t have said “yes” so automatically. So now I am tougher. Now I just say to them, “Give me a compelling reason, really really tell me.” Because to not publish, in my way of thinking, is almost a political act. To not publish is a big deal. So I say, “Give me a compelling reason.” And I don’t think I said that hard enough earlier on. That influences me now. It does make me want to say to the CIA, and the NSA, and other agencies involved in surveillance and intelligence: “Guys, make the case. You can’t just say that it hurts national security. You can’t just say vaguely that it’s going to get somebody killed. You’ve got to help me, tell me.” In cases where they have actually said to me something really specific, I have held it. There is still stuff that’s held, because it is real. But I think I am tougher now and hold them to higher standards. And part of that is that secrecy now is part of the story. It’s not just a byproduct of the story. It’s part of the story. I think there is a discussion in the country about secrecy in government post-9/11. It was provoked partly by Snowden, it was provoked partly by the secrecy of the drone program. And I think that secrecy is now part of it. And that puts more pressure on me to reveal details when I have them.

JG: I interpret you as saying that you have learned from experience and that you have lost trust somewhat in the intelligence community’s representations about the importance of these secrets.

DB: I think that is fair. The only thing I would add in their defense – because I really try to see the world from where they sit; part of my job is to see the world from where everybody sits, and then make a judgment – is that the CIA has not quite accepted that its role has changed. I don’t think they are blind or dishonorable. My relationship with all the spy agencies has been pretty good, going back to Tenet. I think they got used to everybody saying “yes” right after September 11. And I don’t quite think they have accepted that the terrain has changed.

JG: I think they arguably haven’t accepted that the terrain has changed in two ways. One, they don’t understand fully the implications of having become a military force. And also, they really haven’t absorbed – although they are aware of it obviously – that they live in a world where they simply can’t keep secrets like they used to, it’s just not going to happen.

DB: That’s right. I get where they are coming from. I don’t think they are bullshitting. I think they don’t quite understand. I found, when I was dealing with them after Snowden, that they would try to withhold things, and they wouldn’t want to talk about the programs. And I said, “Guys, that horse has long left the barn. You have to talk about the programs. We can’t be coy with each other.” It’s hard for them to accept. There was this tacit understanding that everything they did had to be in the shadows, and everything they did had to be secret, and I don’t think they now understand that with the case of drones, when they run what is largely a military program, I don’t think you can make the same demands about secrecy.

Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.